COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Alston and Chafin
PUBLISHED
Argued at Richmond, Virginia
VICKIE MARRS BELEW
OPINION BY
v. Record No. 1168-10-2 JUDGE ROSSIE D. ALSTON, JR.
MAY 7, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Michael J. Hallahan, II, for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Vickie Marrs Belew (appellant) appeals her conviction for felony hit and run in violation
of Code § 46.2-894. In this appeal, appellant contends that the trial court erred when it denied
her motions to strike because the evidence was insufficient to prove that appellant caused injury
to another or damage to property in excess of $1,000, as required by Code § 46.2-894. Finding
no error, we affirm appellant’s conviction.
I. Background
“When examining a challenge to the sufficiency of the evidence, an appellate court must
review the evidence in the light most favorable to the prevailing party at trial and consider any
reasonable inferences from the facts proved.” Viney v. Commonwealth, 269 Va. 296, 299, 609
S.E.2d 26, 28 (2005) (citing Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538,
539 (2003)).
So viewed, the evidence indicated that during the early morning hours of May 26, 2009,
appellant drove her car on Interstate 64 in Albemarle County. Appellant’s car struck another car
from behind. Denise Vargas (Vargas) was a passenger in the car that appellant struck. After it
was struck, Vargas’ car spun around a total of nine or ten times. Both cars came to a stop, and
appellant unsuccessfully attempted to restart her car. Appellant then exited her car and
approached Vargas’ car, walking unsteadily. Appellant asked, “[W]hat’s going on[?] [W]hat’s
happening[?]” before turning and walking back to her car. As the emergency vehicles
approached with their lights and sirens engaged, appellant ran from the scene of the accident into
nearby woods.
Appellant was found later that morning walking on the side of Interstate 64. At that time,
appellant gave a written statement to the police in which she stated that she had been to a
restaurant the night before and left to drive home. Regarding the accident, appellant stated that
she had been looking for her cell phone so she opened her car door for light. She then
remembered feeling “jerked [and] hit.” Appellant said that she was “confused” at the time of the
accident and that she felt she needed to call her mother and her friends. Appellant also said that
she was “sad to [hear] that someone else was hurt [and] my car is in compound [sic], [and] we
are all victims.”
Appellant was subsequently indicted for failure to stop at the scene of an accident in
violation of Code § 46.2-894.
During appellant’s bench trial, Vargas testified that she had pain in her back after the
accident. She stated,
I have a problem in my neck, as a result of a nervous tic. And
because of the stress I could feel terrible pain . . . in this part in my
back. And then it was very hard and the tic came back very strong
for a couple of weeks.
According to Vargas, she had gone to the emergency room after the accident. Regarding her
medical treatment, Vargas testified that “[t]he doctors checked me and they told me it was the
muscle. The bone was not involved.” Vargas also testified that
-2-
[t]he impact was so strong I was afraid that something was going
to happen to me, maybe that I was going to die. The . . .
paramedics insisted that I . . . should go to the hospital, because I
was so nervous that that could cause me of [sic] some concern.
Vargas also testified that she and the other passengers in the vehicle that was struck were
frightened but “okay” after the accident. However, she also noted that the other passengers
complained of pain. When asked to clarify her testimony that when she said the others were
“okay” she meant that no one had died in the accident, Vargas responded, “No.” In addition, the
following exchange occurred between Vargas and defense counsel during cross-examination:
Q And you indicated [the accident] was very stressful, scary?
A Yes . . . . It’s the first time I was so near to being injured or
maybe even dying.
Q Right. But you weren’t injured, were you?
A No, . . . I could have been. Thank the Lord the car was on
the other side. And that another truck didn’t come and hit
us.
Appellant made a motion to strike at the conclusion of the Commonwealth’s case-in-chief
and presented no evidence. Following a continuance, appellant renewed her motion to strike,
which the trial court denied. The trial court found appellant guilty of felony hit and run in
violation of Code § 46.2-894. The trial court found that Vargas was injured in the accident and
that knowledge of that injury could be imputed to appellant. The trial court sentenced appellant
to five years’ incarceration, with all but ninety days suspended. This appeal followed.
-3-
II. Analysis
On appeal, appellant argues that the trial court erred in denying appellant’s motions to
strike because the evidence was insufficient to prove that Vargas was injured, as required to
sustain a felony conviction under Code § 46.2-894. 1
Our analysis is guided by the often-stated principle that the judgment of the trial court
shall not be set aside for insufficiency of the evidence unless the judgment “is plainly wrong or
without evidence to support it.” Code § 8.01-680. Moreover,
1
Code § 46.2-894 provides, in pertinent part:
The driver of any vehicle involved in an accident in which a person
is killed or injured or in which an attended vehicle or other
attended property is damaged shall immediately stop as close to the
scene of the accident as possible without obstructing traffic . . . and
report his name, address, driver’s license number, and vehicle
registration number forthwith to the State Police or local
law-enforcement agency, to the person struck and injured if such
person appears to be capable of understanding and retaining the
information, or to the driver or some other occupant of the vehicle
collided with or to the custodian of other damaged property. The
driver shall also render reasonable assistance to any person injured
in such accident, including taking such injured person to a
physician, surgeon, or hospital if it is apparent that medical
treatment is necessary or is requested by the injured person.
* * * * * * *
Any person convicted of a violation of this section is guilty of (i) a
Class 5 felony if the accident results in injury to or the death of any
person, or if the accident results in more than $1000 of damage to
property or (ii) a Class 1 misdemeanor if the accident results in
damage of $1000 or less to property.
Appellant does not argue that the evidence was insufficient to prove that appellant knew
or should have known of Vargas’ injury, which is required to support a conviction under Code
§ 46.2-894. See Neel v. Commonwealth, 49 Va. App. 389, 395, 641 S.E.2d 775, 777-78 (2007).
As a result, we will not address this issue in the instant appeal.
In addition, because we hold that appellant’s felony conviction can be upheld on the basis
of Vargas’ injury, we will not address the element of property damage of more than $1,000, the
other basis for sustaining a felony conviction under Code § 46.2-894.
-4-
[w]hen considering a challenge to the sufficiency of the evidence
on appeal, a reviewing court does not “ask itself whether it
believes that the evidence at the trial established guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (emphasis in original; citation
and internal quotation marks omitted). Instead, we ask only
“‘whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499,
502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in
original).
Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904, 906-07 (2009) (en banc).
This deferential standard of review “applies not only to the historical facts themselves, but the
inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2, 588
S.E.2d 384, 387 n.2 (2003).
In contrast, “[t]he construction of a statute is a question of law that we review de novo
upon appeal.” Robinson v. Commonwealth, 274 Va. 45, 51, 645 S.E.2d 470, 473 (2007) (citing
Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227, 229 (2007); Dowling v.
Rowan, 270 Va. 510, 519, 621 S.E.2d 397, 401 (2005)). “‘[T]he general rule of statutory
construction is to infer the legislature’s intent from the plain meaning of the language used.’”
Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Hubbard v.
Henrico Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)). “[T]he plain, obvious, and
rational meaning of a statute is always to be preferred to any curious, narrow, or strained
construction.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
To support a felony conviction under Code § 46.2-894, the Commonwealth must prove,
among other things, that the accident caused injury to or the death of another. Code § 46.2-894.
We find no Virginia appellate case law defining the type of injury the victim in a car accident
must suffer to sustain a defendant’s felony conviction under Code § 46.2-894. Additionally, we
note that, unlike some other statutes, the legislature did not specify the type of injury that must
-5-
occur under Code § 46.2-894 to support a felony conviction. Cf. Code § 18.2-51 (criminalizing
malicious and unlawful wounding when defendants maliciously or unlawfully “shoot, stab, cut,
or wound any person or by any means cause him bodily injury”). 2 Because the term “injury” is
not defined in the statute, we must give the word its “ordinary meaning.” Moyer v.
Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc).
Black’s Law Dictionary defines “injury,” in part, as “[a]ny harm or damage.” Black’s
Law Dictionary 801 (8th ed. 2004). Similarly, Merriam-Webster’s Collegiate Dictionary defines
“injury” as “an act that damages or hurts” and “hurt, damage, or loss sustained.”
Merriam-Webster’s Collegiate Dictionary 644 (11th ed. 2005). We recognize that “penal
statutes are to be construed strictly against the [Commonwealth].” Hines v. Commonwealth, 59
Va. App. 567, 574, 721 S.E.2d 792, 795 (2012) (alteration in original) (citing Wade v.
Commonwealth, 202 Va. 117, 122, 116 S.E.2d 99, 103 (1960)). However, the ordinary meaning
of the word “injury” leads to the conclusion that a so-called “soft tissue” injury such as muscle
pain or damage constitutes harm, damage, or hurt and is therefore sufficient to prove an injury
under Code § 46.2-894. 3
From the evidence in the instant case, the trial court could infer that Vargas’ back muscle
was harmed or hurt and therefore that she was injured under Code § 46.2-894. Vargas testified
that she felt a “terrible pain” in her back after the car accident. In addition, she testified that the
doctors at the hospital examined her and “and they told [her that her pain] was the muscle.” The
2
This Court, however, has interpreted the general term “bodily injury” found in Code
§ 18.2-51 to include soft tissue and internal injuries. English v. Commonwealth, 58 Va. App.
711, 719, 715 S.E.2d 391, 395 (2011). This determination is consistent with the holding we
reach in the case at bar.
3
In further support of this determination, we note that the Virginia Supreme Court has
upheld awards of damages for soft tissue injuries such as muscle strains, spasms, and pain in the
context of personal injury suits. See Toombs v. Hayes, 256 Va. 193, 501 S.E.2d 409 (1998);
May v. Leach, 220 Va. 472, 260 S.E.2d 456 (1979); Hardy v. Greene, 207 Va. 81, 147 S.E.2d
719 (1966).
-6-
trial court could infer from this testimony that the doctors told Vargas her back pain was caused
by a muscle injury. This evidence was therefore sufficient to support the trial court’s conclusion
that Vargas was injured.
In addition, the evidence was sufficient to support the trial court’s conclusion that the car
accident caused Vargas’ injury. To support this conclusion, we note that Vargas testified that
she felt pain in her back after the accident and that the doctors at the hospital “told [her that her
pain] was the muscle.” Viewing the evidence in the light most favorable to the Commonwealth,
as we must on appeal, because Vargas’ pain occurred immediately after the accident and her
doctors related her pain to her back muscle, we hold that the trial court could infer that the car
accident injured Vargas’ back muscle, causing Vargas’ pain.
Contrary to appellant’s argument that Vargas’ testimony that no one was injured in the
accident shows that the evidence was insufficient to prove an injury, the trial court was entitled
to reject Vargas’ testimony on that point while crediting her testimony regarding her back pain
and her doctors’ statements. Commonwealth v. McNeal, 282 Va. 16, 22, 710 S.E.2d 733, 736
(2011) (stating that a fact finder can “resolv[e] conflicts in a single witness’ testimony, accepting
that part of the testimony it deems credible and rejecting the portion it deems incredible”).
Moreover, on appeal, we “‘must presume – even if it does not affirmatively appear in the record
– that the trier of fact resolved any such conflicts [in the evidence] in favor of the prosecution,
and must defer to that resolution.’” Harper v. Commonwealth, 49 Va. App. 517, 523, 642 S.E.2d
779, 782 (2007) (quoting Jackson, 443 U.S. at 326).
Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to
prove Vargas’ back pain was caused by the car accident at issue in this case. Additionally, under
the plain meaning of the word “injury,” we hold that a soft tissue injury such as muscle pain
-7-
constitutes an injury within the meaning of Code § 46.2-894. Therefore, we affirm appellant’s
conviction.
Affirmed.
-8-